GAPS IN THE LAW. THE ANALOGY OF LAW AND THE ANALOGY OF LAW

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Gaps in law and the law are one of the problems of law-making in any state. A.F. Cherdantsev suggests understanding a gap in law as "the absence of a rule of law that should be in the legal system from the point of view of the principles and assessments of the law itself" [1, p. 256]. It should be noted that even the most perfect legislation of a certain state cannot provide for everything that goes beyond the usual situations that may arise in the course of human life and cause the need for legal regulation.

Gaps in the law arise for a number of reasons. As a rule, they are divided into objective and subjective reasons.

According to Professor A. B. Vengerov, objective gaps arise in cases when "the legislator may not be ready to adopt a particular law. The legislature is torn apart by political passions, conflicts of interests between social groups and political parties. The upper house rejects the law passed by the lower house. Public relations have such a novelty and degree of complexity that it is unclear how they should be regulated by what legal means. These are objective factors. They lead to the emergence of so-called legal vacuums" [2, p. 438].

Obviously, objective gaps in the law appear in connection with the emergence of new social relations that the legislator could not have foreseen; also, objectively, gaps may appear due to a sharp change in the political and economic courses of the state, during this period the gaps are especially noticeable, their existence is felt especially difficult, in such a situation, law-making bodies do not keep up with rapidly changing the realities of the modern development of new social relations.

The subjective reasons are caused by the weakness of the legal training of the relevant specialists of the rule-making body, or the existence of some other view of public relations that requires regulation, which does not correspond to its actual essence. It is also worth considering that before the legislative act it comes into force, it goes through a series of stages at which any error could occur (incorrect choice of the form of the act, incorrect definition of the subject of legal regulation, lack of legal means to implement the norm).

I. Spectrum refers to the subjective reasons for the appearance of gaps as the direct omission of the legislator, which takes place:

1) as a result of a normative reflection of reality, when the wording of a normative legal act does not cover any public relation or their group requiring such regulation;

2) due to legal and technical errors made in the process of lawmaking [3, p. 23].

The concept of a "gap in law" is associated with such phenomena as the analogy of law and the analogy of law.

Law enforcement entities often face gaps in the law in the process of applying the law. If there is a gap in the current law, then filling the gap in the law in the form of creating new norms of law is used to eliminate it. This function relates to the activities of law-making bodies. However, there are situations when, for some reason, the legislator cannot quickly close the gap, and, for example, in the process of a legal case, the courts may face a gap. In this case, an analogy is used. It is necessary to resolve the case in the absence of specific legal norms. That is, by filling in, one should understand the final elimination of a gap in law by a law—making body, and by elimination - the temporary elimination of a gap by a law enforcement body until the adoption of a norm that would fill in the gap.

Alekseev, for example, understands by analogy of the law: "the solution of a case or a separate legal issue on the basis of a law regulating similar relations" [4, P. 118].

In the Russian legal system, judicial practice is associated with the processes of both overcoming and filling gaps, but in this area legal regulation is not complete and consistent. Courts of different levels use the institution of analogy to bridge gaps in making decisions, and the highest judicial authorities of Russia actually fill in gaps in legislation without having direct authority to do so. Traditionally, judicial practice is considered through the use of the institute of analogy.

The analogy of the law.

According to paragraph 1 of Article 6 of the Civil Code [5] in cases where relations are not directly regulated by legislation or agreement of the parties and there is no custom applicable to them, civil legislation governing similar relations applies to such relations, if it does not contradict their essence. That is, before applying the analogy of the law, the court must: first, establish that the relationship is not regulated, and secondly, such relations are similar to relations that are regulated by a legal norm. After these two conditions are met, the court applies the legal norm governing similar relations to the relations of the parties to the dispute. In other words, the court modifies the hypothesis of this rule in order to apply its disposition to the relations of the parties to the dispute.

Thus, the Arbitration Court of Primorsky Krai [6] reduced the amount of compensation that was due to the rightholder for the illegal use of a trademark provided for in paragraph 4 of Article 1515 of the Civil Code of the Russian Federation, on the basis of Article 333 of the Civil Code of the Russian Federation, which establishes the right of the court to reduce the penalty in case of its disproportionality to the consequences of violation of the obligation. That is, the court applied the norm of Article 333 of the Civil Code to the relations of the parties to recover monetary compensation for the illegal use of a trademark. The courts of appeal and cassation agreed with this provision.

However, the Supreme Arbitration Court of the Russian Federation [7] did not agree with the lower courts and indicated in its Decision No. VAC-9189/13 dated February 4, 2014 that Article 333 of the Civil Code cannot be used by analogy in this case, since according to paragraph 1 of Article 6 of the Civil Code, the analogy of the law applies if the relevant relations are not settled the legislation or agreement of the parties and there is no business practice applicable to them, in this case there is legal regulation. The Supreme Arbitration Court [7] pointed out that "the court of first instance incorrectly established that, firstly, the relations of the parties are not regulated, and secondly, that such relations are similar to others that have legal regulation (Article 333 of the Civil Code)." Thus, the lower courts considered that there was a gap in the law, whereas in fact there was legal regulation and there was no gap.

The situation is quite different when a higher court, on the contrary, indicates the need to apply the analogy of the law. Thus, on the basis of non-application of the analogy of the law, the Presidium of the Supreme Arbitration Court of the Russian Federation [8] overturned the decision of the court of cassation. The plaintiff filed a claim against the defendant for the recovery of a part of the transformer substation from his illegal possession to the Arbitration Court of the city of St. Petersburg and the Leningrad Region. The claim [9] was satisfied on the basis of Art. 301 (reclamation of property from someone else's illegal possession) and art. 302 (reclamation of property from a bona fide acquirer) of the Civil Code. The court of appeal left the decision of the court of first instance unchanged, that is, the above-mentioned articles of the Civil Code were applied by analogy. However, the court of cassation overturned the decisions of the court of first instance and the appellate instance and, in substantiating its position, pointed out that the object of vindication can only be an individually defined thing that exists in kind, when, as stated in the case, the share in the right is not a thing and cannot be found in actual possession of any person and therefore its You cannot be exterminated. Canceling the decision of the court of Cassation, the Supreme Arbitration Court pointed out that since the legislation has such a type of property as a share in the ownership of an indivisible thing, in case of violation of the right to this property, its owner is protected. That is, the decision of the court of cassation was canceled due to the fact that the court did not apply the analogy of the law, namely, it did not extend the provisions of the Civil Code on things to property rights.

Thus, since the Civil Code specifies a norm according to which the application of the analogy of the law is provided for, judicial law-making is allowed, or rather recognizes its necessity, since the court is obliged, regardless of whether there is regulation of the relations of the parties to the conflict or not, to resolve this conflict based on existing legislation. The analogy is also used in other branches of law, although it is worth noting that it is most often used in situations regulated by the Civil Code.

Speaking about other branches of law, for example, housing law, it is worth saying that the Housing Code of the Russian Federation [10] explicitly provides for the possibility of using an analogy in Article 7, according to which: «1. In cases where housing relations are not regulated by housing legislation or an agreement of the participants in such relations, and in the absence of norms of civil or other legislation directly regulating such relations, housing legislation it corresponded to reality, therefore, an order was issued to recalculate the payment for hot water during this period. Since the legislation does not directly regulate the charging of utility bills for hot water consumed during the maintenance of the common property of an apartment building, therefore, the courts used, by analogy, the norms of the Housing Code of the Russian Federation and the Rules for Providing Utilities to Owners and Users of Premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 No.354 [11].

Speaking of labor legislation, it does not explicitly provide for the possibility of applying an analogy. In judicial practice, as in most cases, there is no consistency in the settlement of labor relations by analogy. For example, the plaintiff appealed to the Tushinsky District Court of Moscow with a claim against the defendant for recognizing the order to terminate the employment contract as illegal, followed by reinstatement at work and payment of a certain amount of money. The defendant offered the plaintiff to resign by agreement of the parties, to which the plaintiff said that he was in a position, but the employment relationship was terminated anyway on the basis of paragraph 1, part 1 of Article 77 of the Labor Code of the Russian Federation (general grounds for termination of an employment contract). The Tushinsky District Court of Moscow refused to satisfy the plaintiff's claims [12]. In turn, the Judicial Board for Civil Cases of the Moscow City Court [13] overturned the decision of the lower court, pointing out that "... a guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer, provided for in part one of Article 261 of the Labor Code of the Russian Federation (Guarantees to a pregnant woman and persons with family responsibilities upon termination of an employment contract) It is also applicable to relations arising from the termination of an employment contract by agreement of the parties (paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation)." That is, the Judicial Board pointed out that in a particular case the analogy of the law should have been applied, but the district court did not do this. The Judicial Board also pointed out that "a different interpretation of these regulations would lead to a limitation of the scope of labor rights of an employee who has concluded an agreement with an employer on termination of an employment contract and is deprived of the opportunity, due to the circumstances, to refuse to fulfill the agreement, and, as a result, to refuse to provide legal guarantees to an employee, in particular guarantees against dismissal of a pregnant woman a woman."

Tax legislation, as well as labor legislation, does not contain norms on the permissibility of applying the analogy of the law. In the explanation of the Supreme Arbitration Court of the Russian Federation [14], it was pointed out that tax legislation does not allow the application of the law by analogy, however, after analyzing judicial practice, it can be noted that in some cases the court still applies analogy. For example, the plaintiff appealed to the Arbitration Court of the city of Moscow with a statement declaring illegal the inaction of the Interregional Tax Service for the largest taxpayers No. 4, expressed in the refusal to refund interest accrued in accordance with paragraph 17 of Article 176.1 of the Tax Code of the Russian Federation (declarative procedure for tax refund) [15]. In turn, the defendant filed a complaint, where he pointed out that the norms of tax legislation do not provide for the procedure for returning the interest paid by the taxpayer to the budget at the request of the tax authority, accrued to him for the amount of tax reimbursed in the declaratory order, based on the decision of the tax authority to refuse to reimburse the specified amount, and the issue of the possibility of interest accrual has not been settled for the amounts of excessively collected interest. The court refused to satisfy the plaintiff's claims [16], the decision was left unchanged by the court of appeal and cassation, in particular, in the Decision of the FAS of the Moscow District dated March 25, 2014 in the case N A40-123800/12 it says: "Since there are no provisions in the tax legislation regulating the procedure for the return of interest accrued under paragraph 17 of Article 176.1 of the Tax Code of the Russian Federation (the declarative procedure for tax refund) and providing for the duty of inspection to return the interest accrued in accordance with this norm for the amount of tax reimbursed on the basis of the decision of the tax authority to refuse to reimburse the specified amount, which was subsequently canceled, the courts lawfully applied the analogy of the law - the provisions of articles regulating the refund of overpaid taxes, fees, penalties and fines." That is, the courts of all instances lawfully applied the analogy of the law.

Family law explicitly provides for the use of analogy, in particular in Article 5 of the Family Code of the Russian Federation [17]: "If the relationship between family members is not regulated by family law or agreement of the parties, and in the absence of norms of civil law directly regulating these relations, to such relations, if it does not contradict their essence, the norms of family and (or) civil law governing similar relations are applied (analogy of the law). In the absence of such norms, the rights and obligations of family members are determined based on the general principles and principles of family or civil law (analogy of law), as well as the principles of humanity, reasonableness and justice.". For example, the plaintiff appealed to the Arbitration Court of the Irkutsk region with an application for invalidation of the agreement on the provision of monetary maintenance, which was concluded between the debtor and the defendant, on the application of the consequences of the invalidity of the transaction in the form of a return to the bankruptcy estate of funds in the amount of the amount paid under the disputed agreement. The court of first instance refused to satisfy the application [18], the appellate instance left the application unchanged. The courts came to a decision based on paragraph 1 of Article 85 of the Family Code of the Russian Federation (the right to alimony for disabled adult children) and art. 2 of the Law on Pension Provision (the basic concepts used for the purposes of this Federal Law) [19], however, the court of cassation pointed out that the above-mentioned courts incorrectly applied the analogy of the law, noting that in this situation the analogy of the law or law is not applicable at all, since the concept of disability of adults when considering family disputes is disclosed in the resolution Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56 "On the application of legislation by Courts in cases related to the recovery of alimony" (hereinafter – Resolution № 56) [20] [21]. According to the explanations set out in paragraph 7 of Resolution No. 56, disabled adults who are entitled to alimony (Articles 85, 89, 90, 93-97 of the IC of the Russian Federation) should be understood as persons recognized in accordance with the established procedure as disabled persons of group I, II or III, as well as persons who have reached the generally established retirement age, in while the defendant did not meet the stated requirements. Because of this, the cassation instance overturned the decision of the lower courts and the case was sent for a new hearing.

In criminal law, for example, the application of criminal law by analogy is not allowed, in accordance with Part 2 of Article 3 of the Criminal Code of the Russian Federation [22] (the principle of legality), which also states that the criminality of the act, its and other criminal consequences, according to part 1 of this article, are determined only by the Criminal the code. However, there have been cases when courts have applied the norms of civil law in criminal law by analogy. That is, the application of criminal law by analogy is prohibited, but not the application by analogy of the provisions of civil legislation in the application of criminal law. It should be noted, however, that the application of the analogy of civil law in criminal legal relations is rather an exception.

Thus, the court should resort to the analogy of the law only in the absence of a norm adapted to this particular case, i.e. if there is a gap in legal regulation. If this gap is not subsequently filled by the legislator, then it is likely that the next trial in a case with similar circumstances will end with the application of the analogy of the law. In other words, applying the analogy of the law, the court not only performs a law-making function in this particular case, but also creates prerequisites for legislative regulation in future judicial processes. The legislator, as mentioned above, not only authorizes the possibility of judicial legislation in the form of applying the analogy of the law, but also realizes its necessity due to the objective impossibility of creating legislation that does not pose a problem.

The analogy is right.

The next way to overcome gaps in legal regulation through the exercise of justice by the court, as indicated at the very beginning of the work, is the analogy of law.

According to paragraph 2 of Article 6 of the Civil Code of the Russian Federation (application of civil legislation by analogy), if it is impossible to use the analogy of the law, the legal relationship of the parties is determined based on the general principles and meaning of legislation and the requirements of good faith, reasonableness and fairness, that is, the analogy of law implies more freedom.

In other words, applying the analogy of law, the court must: firstly, establish that there is no regulation of relations by law, agreement of the parties and there is no custom that applies to them; secondly, establish that in a particular case it is impossible to apply the analogy of law, since there are no similar relations that would be permitted by law, or there are such relations, but the application of the analogy of the law would contradict their essence. Then the court must determine the rights and obligations of the parties, while relying on the general principles and meaning of the laws, as well as on the requirements of fairness, reasonableness and good faith.

It turns out that the court itself creates a rule of law that regulates the specific relations of the parties in a particular situation, only based on the principles of various branches of law.

Also, many legal scholars have spoken out about the role of judicial practice in filling and overcoming legislative gaps. V. V. Lazarev and D. A. Fursov noted: "in the latest literature, the participation of the courts of the Russian Federation in the development and implementation of legal policy is emphasized and, accordingly, the role of judicial policy in correcting the policy of legislative bodies is recognized, but only in relation to the Constitutional Court of the Russian Federation and the ECHR (European Court of Human Rights), a conclusion is drawn about the unprecedented (in degree) impact of its decisions the legislation and the relevant institutions of the legal system. Meanwhile, this approach is justified in relation to the Russian courts, which in some cases make equally fundamental decisions. In the course of court proceedings, sometimes no less, but even more abstract rule is born than the rule created by the legislator" [23 p. 6]

In a joint article by N. A. Vlasenko and M. V. Zaloilo, it is noted: "The great potential of the impact of judicial practice on improving the quality of lawmaking is seen in the fact that judicial practice is formulated as a judgment in which there is a proven and adequate rule ready for perception. The most appropriate way is to borrow ideas from such a form of expression of judicial practice as the resolutions of the plenums of the highest judicial bodies. The legislative initiative of the judiciary is the most desirable way of influencing. The judicial authorities that have directly identified the gap and formulated the new provision will be able to convey it as accurately as possible in the text of the bill." [24 p . 46]

Thus, the court can resort to the analogy of law and the analogy of the law only if there is a gap in the legal regulation. At the same time, using the analogy of the law, the court must.

That is, the court, through judicial practice, can fill in gaps in the law, create a prerequisite for lawmaking in future trials. The legislator, as already mentioned above, is aware of the need for judicial law-making in the form of applying analogy, since this is caused by an objective reason: the legislator cannot create perfectly sound legislation. So, the application of the analogy of law and the analogy of law is necessary due to the presence of gaps in legal regulation and the obligation of the court to carry out justice.

About the authors

Valeria A. Suchkova

Author for correspondence.
Email: Suchkova.V.A@yandex.ru

References

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